JN (Cameroon) v Secretary of State for the Home Department

A failure to state the proposed country of removal in a deportation decision notice, contrary to regulation 5(1) of the Immigration (Notices) Regulations 2003, does not invalidate the statutory decision to make a deportation order or deprive the immigration tribunal of jurisdiction.

The Regulations govern notification and do not condition the decision-making power under section 5(1) of the Immigration Act 1971. In any event, the consequence of procedural non-compliance depends on legislative intention and fulfilment of the requirement's purpose. Its essential purpose is to enable an effective appeal concerning the proposed destination. Where that destination was clear and the omission caused no impairment or prejudice, invalidity was not intended.

The appellant, a Cameroonian national, was convicted of possessing a false instrument and recommended for deportation. The Secretary of State decided under section 5(1) of the Immigration Act 1971 to make a deportation order. The written notice omitted the country to which removal was proposed, although the surrounding correspondence and asylum proceedings consistently identified Cameroon.

The Asylum and Immigration Tribunal dismissed his appeal. On reconsideration, it found no material error of law, reasoning that the appellant had waived the notice defect by appealing and had suffered no prejudice.

The Court of Appeal considered whether non-compliance with regulation 5(1) of the Immigration (Notices) Regulations 2003 invalidated the notice or deportation decision and thereby deprived the Tribunal of jurisdiction. A separate ground concerning article 8 of the European Convention on Human Rights was not pursued.

1. Appeal dismissed. The Court unanimously granted permission on the jurisdictional ground but dismissed the substantive appeal. The notice failed to comply with regulation 5(1) of the Immigration (Notices) Regulations 2003, because its heading referred only to the appellant's nationality and did not state the proposed destination. That defect did not invalidate either the notice or the deportation decision and did not deprive the Tribunal of jurisdiction.

2. The immigration decision appealable under section 82(2)(j) of the Nationality, Immigration and Asylum Act 2002 was the decision under section 5(1) of the Immigration Act 1971 to make a deportation order. Neither statute required that decision or the order itself to identify a destination. Section 105 of the 2002 Act merely empowered the Secretary of State to make notice regulations. The Regulations therefore did not condition the exercise of the statutory decision-making power, and breach of their requirements could not affect the decision's validity.

3. Even if the Regulations had conditioned that power, the omission would not have produced invalidity. Applying R v Soneji [2006] 1 AC 340, the question was whether the legislature intended an act performed in breach of the procedural requirement to be invalid, assessed by reference to the consequences of non-compliance and the requirement's purpose.

4. The essential purpose of stating the proposed destination was to assist the affected person in presenting an appeal under the Refugee Convention or the European Convention on Human Rights. A notice records only a proposal, potentially involving alternative destinations. It does not contain removal directions or determine the destination ultimately permitted after appeal and further consideration.

5. Cameroon had been the clear proposed destination throughout, and the omission neither misled the appellant nor impaired his appeal. Non-compliance therefore caused no material adverse effect on the requirement's purpose. The matter was decided on legislative intention rather than waiver.

6. Obiter, even if the destination remained unclear throughout the appeal, the notice and decision would not thereby become invalid. The person would instead retain an opportunity to challenge later removal directions to a specific destination, without being met by an argument that the earlier appeal had exhausted the relevant rights.

• Court of Appeal (Civil Division): Permission to appeal was granted on the jurisdictional ground, but the appeal was dismissed unanimously: [2009] EWCA Civ 307.
• Asylum and Immigration Tribunal on reconsideration: The Tribunal found no material error of law in the original decision. It held that the appellant had waived the notice defect by appealing and had suffered no prejudice.
• Asylum and Immigration Tribunal: The original panel dismissed the appeal against the decision to make a deportation order.